Results of Federal Court of Appeal hearning on MAI, 12 June 2000

Three judges of the Federal Court of Appeal of Canada ( Isaac,
Robertson, Sharlow) dismissed three appeals before the Court today
which dealt with:

1.whether Cabinet, the Prime Minister and his Ministers, can sign
treaties, in secret, without any Parliamentary input, and bind Canada,
under our new patriated Constitution of 1982;

2.whether the secrecy of 'Cabinet' privilege, under which citizens are
not entitled to inquire about secretive Cabinet deliberations and
decisions, is constitutional in light of the fact that the Supreme
Court of Canada has ruled that the Courts are under a duty to review
Cabinet decisions; and

3.whether Judge Dubé, an ex-Cabinet Minister who served with Prime
Minister Jean Chrétien, who was a named Respondent party to the
challenge, should have stepped down from hearing this case.

On April 22nd of 1999 Judge McKeown had dismissed the challenge based
on his finding that since the MAI was not being 'negotiated' any
longer at the OECD, then the Court had no issue before it. However,
even Judge McKeown, in his decision, conceded that the following
issues were NOT moot, namely whether: 1.Cabinet has a 'residual
prerogative' ( a right to make decisions in secret without any input
or say from Parliament) over the signing of treaties that bind Canada
internationally; and

2.whether the secrecy and privilege accorded to Cabinet is
constitutional.

Judge McKeown quite clearly decided that these issues before him were
NOT moot, along with other legal issues before him in the Application.
Even so, he decided not to hear them based on his decision that the
MAI was no longer being negotiated at the OECD..

In the Court of Appeal, the three judges decided to agree with the
reasons of Judge McKeown. They based their wrong decision on the fact
that the Federal Court of Appeal, unlike the Supreme Court of Canada,
was not the place for such issues.

In what amounted to no less than an 'Alice in Wonderland' exchange
with our counsel Rocco Galati, the Court of Appeal created a new class
of appeals for it 'not to decide.' It stated that even where there
are serious and non-moot constitutional issues, they could refuse to
decide these issues based on their assessment that they are 'academic'
or 'hypothetical.' This classification is one which is unknown in law
and at complete odds with the law as set down by the Supreme Court of
Canada with respect to these issues.

While the Federal Court only heard partial argument on the first of
the three appeals, they issued reasons on the other two appeals as if
they had heard arguments, which they had not.

The Court of Appeal made it quite clear in its comments to Rocco
Galati during oral argument that it would be the Supreme Court of
Canada who would have to decide these issues, not the Federal Court.

Confident in the fact that the flagrant figure-skating of the Federal
Court is wrong, according to the law as enunciated by the Supreme
Court of Canada, and given the clear open statement and invitation to
appeal to the Supreme Court, we will be filing a 'Leave Application'
(an application for permission to bring up the appeal) with the
Supreme Court of Canada in the next sixty days.

It is clear that the decision of the Federal Court of Appeal, not only
in the tone exhibited in open court, but also in its blatantly wrong
reasons, amounts to a serious mis-statement of the law and a decision
not to deal with serious issues even though the court concedes that
the issues are non-moot.

In another exchange with our counsel, the Learned Chief Judge of the
Coram stated: 'The Court does not fumble!' But in this case it may
well be that it stumbled or even bumbled. The Supreme Court of Canada
will decide.

It was clear that the Court of Appeal had made up its mind against us
before Court started. Once again our lawyer speaking for us was unable
to get to the merits of the case. The Court was so hostile to our case
that a number of our citizens who were present felt personally
attacked and abused.

Nevertheless, I urge people not to be discouraged. The good point is
that we move more quickly now to addressing the Supreme Court of
Canada which is the only Court that will deal with our issues. If we
had won this appeal, we would have been sent back down to a lower
court and would have had to start all over again. This Court of Appeal
would have been saying to the lower court that the lower court made a
mistake and must now hear the case which it had refused to hear. The
cost to us to start all over would have been awful.